In this case, defendant moves for dismissal of the claims for declaratory relief based on the fact that the Judge who conducted the eviction proceedings against the plaintiffs has since retired from the bench. Judge Bergin signed the judgment of eviction and filed it with the Herkimer County Clerks' Office on December 9, 1988. On December 12, 1988 the Judge signed a warrant of eviction which was executed on February 2, 1989. Plaintiffs began an appeal and sought a temporary restraining order, but after the motion for a temporary restraining order was denied by the Appellate Division, plaintiffs abandoned their appeal. The appeal has been dismissed by the Fourth Department Appellate Division, the judgment of eviction is final, and all proceedings regarding the eviction have been terminated. Judge Bergin retired on May 13, 1991 and is no longer a Judge for the Herkimer County Court or any other court.

A similar case was presented in Pancake v. McCarthy, supra, where plaintiff sued for declaratory relief for a breach of 42 U.S.C. § 1983 claiming that a state court judge had unconstitutionally coerced him into accepting a settlement. The court found the questions underlying the request for declaratory relief to be moot because the settlement had been entered and the judge in question had retired. The court therefore found that there was no chance of the plaintiff coming into conflict with the judge again. Pancake at 379.

In this case, because the eviction proceeding is final and Judge Bergin has retired there is no plausible way that the plaintiffs will come into conflict with the Judge in any future court proceedings. This precludes a finding that there is "sufficient immediacy and reality here to warrant an action for declaratory relief." Adams v. McIlhany, 764 F.2d 294, 299 (5th Cir. 1985) quoting Golden, supra, at 959-60. Thus, the questions underlying the request for declaratory judgment are moot and the first and fourth causes of action must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1). Accordingly, there is no reason for the court to address the defendant's Rule 12(b)(6) motion and the plaintiffs' case is dismissed with prejudice in its entirety.

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